Date: Fri, 13 Jun 2008 18:53

From: John Swan

Subject: Novel Duty of Care?

I can think of at least three reasons for suing a boy. An important aspect of the case is that it is a subrogated claim. The insurance company may want to establish a precedent which it could use in other cases, i.e., it is an institutional litigant. Under Ontario law a judgment — at least of an Ontario court — is never barred by the passage of time and the boy may come into money. The boy might have had insurance from some source which might be exigible by the plaintiff.

John

--------------------------------------------------------------------------------
From: Tsachi Keren-Paz  
Sent: June 13, 2008 1:32 PM
Subject: Re: Novel Duty of Care?

Jason Neyers said "I find the case frustrating since it could have been decided the same way, much more cleanly and without any resort to policy, using a contractual or voluntary assumption of risk analysis". 

Why? assumption of risk analysis and contractual allocation of risks through implied terms analysis OR the "for the benefit of minor" doctrine are based exactly on the same policy considerations that led to the denial of duty in Douglas. Besides, it should not be frustrating that courts resort to policy analysis as long they do so openly and correctly, but it is a kind of disagreement we are not going to solve.

To me, Douglas in another example to the Canadian tendency to strip the second part of the Anns/Kamloops test from any significance by doing almost all of the policy analysis as part of examining proximity (similar to what the SCC did in Childs). I have doubts whether this is desirable/helpful.

Finally, can someone explain to me the economics of the case? Why suing a 19(?) year old defendant for $285,000?

<<<< Previous Message  ~  Index  ~  Next Message >>>>>